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Bergstein & Ullrich, LLP

This blog covers the civil rights opinions of the Second Circuit Court of Appeals. Sponsored by the law firm of Bergstein & Ullrich, LLP, New Paltz, N.Y. We can be reached at www.tbulaw.com. This blog should not be construed as offering legal advice.
Bergstein & Ullrich is a litigation firm formed in 2001. We concentrate in the areas of civil rights, employment rights and benefits, workplace harassment, police misconduct, First Amendment and appellate practice.
We are admitted to practice in the courts of the State of New York, the Southern, Eastern and Northern Districts of New York, the Second and Third Circuit Courts of Appeal and the United States Supreme Court.
This blog's author, Stephen Bergstein, has briefed or argued approximately 200 appeals in the State and Federal courts.

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Wednesday, February 4, 2015

Supreme Court declines to hear "adverse action" case under Title VII

The Supreme Court is choosy when it comes to taking on new cases. While the Court declined to hear this Title VII discrimination case, Justice Alito dissented from that denial and issued an opinion that places this issue on the radar for management lawyers as a possibility for future Court review.

The case is Kalamazoo County v. DeLeon. Justice Alito issued his dissent from the denial of certiorari on January 12. In Title VII cases, in order to claim actionable discrimination, the plaintiff has to allege that management subjected him to an adverse employment action. If the plaintiff was fired or demoted or somehow lost money or was given an undesirable position, that employment action is sufficiently adverse for a discrimination claim. If the plaintiff suffered a trivial management decision, that is not enough for a case.

In this case, the Sixth Circuit Court of Appeals (out in the midwest) said the plaintiff had an adverse employment action because he was transferred to another position that he did not like. Plaintiff, a longtime employee, applied for a position as an equipment and facilities superintendent on the Road Commission. The job posting said the position required work "primarily in office conditions and in a garage where there is exposure to loud noises and diesel fumes." Plaintiff asked for the position, and he got it. But when he got it, he decided he did not like it. He then sued for age, national origin and race discrimination. The Sixth Circuit said a jury must hear the case, reasoning that a "plaintiff's initial request" for a transfer does not "preclude him from finding that he suffered a materially adverse employment action" when he later receives that transfer.

The Supreme Court declined to take on this case, probably thinking that this factual scenario is too uncommon to justify a full-scale case in the highest court of the land. But Justice Alito says the Sixth Circuit's ruling is so wrong that the Supreme Court can reverse without oral argument.Alito cannot understand why this is a case. He says:

Under all of the antidiscrimination provisions upon which respondent
[Deleon] relies, he was required to show that he suffered an adverse
employment action. That concept means, at a minimum, 'an
injury or harm' that 'a reasonable employee would have found . . .
materially adverse,' and respondent did not meet that standard here.

Respondent
gave every indication that he wanted the position to which he was
transferred," the dissent continues. "He applied for it. He spoke to his
supervisors about it, and even when they told him that some of his
preferences would not be met - he would not receive an assistant, and he
would continue to be part of the on-call duty rotation --he continued
to pursue his application. He interviewed for the position. And then,
when he initially did not receive the transfer he sought, he followed up
with his supervisors to ask why they had not chosen him. It is of
course conceivable that respondent had changed his mind and no longer
wanted the job, but if by the time of his transfer that was so, he gave
no objective indication of that fact. Respondent's supervisors did not
violate federal law by granting him the transfer that he sought and that
they had no reason to believe he did not want.

The Sixth Circuit said plaintiff had a case even though he sought the position. Judge Keith wrote that "Deleon applied for the position with the intention of commanding a substantial raise and under the impression that employment benefits would inure to the benefit of his career. Such a request for 'hazard pay,' which was never provided, tilts the issue as to whether Deleon really requested or wanted the position in his favor." The Court added,

Nor are we persuaded by the fact that Deleon technically never withdrew his request, and did not complain at the time he received the transfer. Although Deleon did not testify that he specifically told a superior that he did not “like” his new job, he did testify that he approached his supervisors and asked them “why they took me out of a job [where] I was doing a good job and put me in a more hazardous job.” This supports Deleon’s argument that he was “set up to fail.” We are leery of a holding that would require that an involuntarily transferred employee, alleging a discriminatory work environment, must demand a transfer from the very superiors engaging in the discrimination.

The Supreme Court considered this case at its weekly conference from October through January, so there must have been quite a debate over whether to take it. Even though Justice Alito took the time to write a lengthy dissent from the Court's refusal to hear the case, the Court still took a pass. It proves once again that the Supreme Court is quite choosy, maybe too choosy, in taking on cases. The Court may have declined to hear this case, but I am sure Justice Alito is on the lookout for an issue like this in the future.